Letting a room prohibited under mortgage agreement

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    We have received a claim for a room, where gas, electric, water and cleaning are included in the rent, but no meals. Owner lives in the property.
    However, we have been informed that under the terms of the owner’s mortgage he cannot let the property or any part of it. Can HB be paid?


    I can see no reason why not – the LL would still have an action against the Tenant, the tenant would not be able to use the prohibition in the mortgage agreement to defend any claim for rent.


    See the observations of Mr Commissioner Jacobs in CH/0318/2003, a case that involved someone living in a narrow boat with no fixed mooring who was probably also in breach of his canal licence.

    The following paragraphs are most notable:

    “18. Mr Kenny argued that if the claimant were to succeed in this case, it would mean that claimants could obtain housing benefit in respect of camper vans kept on parking meters and tents pitched in public parks. I accept that they would be the potential consequences of a decision in the claimant’s favour. To obtain housing benefit in such circumstances would be unusual and, therefore, perhaps surprising. But I do not consider that it would be an absurdity to award housing benefit in such circumstances. The purpose of the housing benefit scheme is to provide financial support for those who cannot meet their housing costs in the rented sector. If claimants can satisfy the conditions of entitlement in those circumstances, why should they be denied benefit because their housing arrangements are unusual? ”


    “30. The tribunal’s reasons raise the issue of lawfulness. This issue arose at various points in the argument. Examples were given of circumstances in which claimants were not lawfully occupying their accommodation. And both Mr Kenny and Ms Davies argued that the claimant’s use of the canal through the local authority’s area was in breach of his licence. However, when pressed on the point Mr Kenny refrained from putting his argument on the ground that lawfulness of occupation was decisive. In her final written submissions, Ms Davies was not so reticent.

    31. I reject the argument that only lawful residence is within the housing benefit scheme. Regulation 10 expressly provides that housing benefit is payable in respect of what are in effect damages for trespass. The housing benefit scheme expressly accepts the possibility that the claimant’s presence in the accommodation may not be lawful. I therefore reject any argument in so far as it is based on the fact that the claimant was not entitled to be where he was. ”

    He also wrote at para 16 of CH/0926/2004

    “16. Some issues were raised relating to planning permission, housing lists, and the availability of accommodation. Those factors cannot affect the nature of the arrangement between the claimant and his father as landlord and tenant, either individually or collectively”

    I dont think there is any doubt that a possible breach of the mortgage conditions by the landlord would be enough for the LA to refuse payment of HB



    Its Friday after lunch so I am probably being dim……Does your conclusion not contradict the passages you have posted?


    Thanks Pete – it was that last line. I’d decided I was reading it wrong. I assume the general gist is that there are not grounds to refuse HB.

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